Legal issues experienced by people with a cognitive impairment

The Foundation's survey of legal need in six disadvantaged regions of NSW, Justice made to measure, found that people with disabilities (cognitive and otherwise) had increased vulnerability to a broad range of legal issues when compared with other people, and that these issues were less likely to be resolved.7 This finding is consistent with overseas legal needs surveys which also highlight clear links between disability, multiple and compounding legal issues and social exclusion.8 However, whereas Justice made to measure (and other legal needs surveys) looked at the broad category of 'disability', not cognitive impairment in particular, the Foundation's in-depth qualitative research (and other literature) has covered the specific relationship between cognitive disability and legal need. This research suggests that people with a cognitive impairment are particularly vulnerable to a range of legal issues.

Civil Law

Some of the civil law problems reported in our studies were directly related to the cognitive impairment, for instance: personal injury or victims compensation claims, when the disability was a result of the injury in question; discrimination on the basis of disability; and matters of capacity where substitute decision making was necessary. However, it was also apparent that civil law issues could arise from the socio-economic disadvantage commonly associated with disability. These legal problems included fines, debt, social security related issues and vulnerability to financial abuse. Whatever the cause, in some cases the person with cognitive impairment needed to bring the action (as a plaintiff), while in others they were the respondent to or subject of the legal process (e.g. as a criminal defendant). The following examples illustrate the various ways that cognitive impairment may intersect with legal need.

Substitute Decision Making

In situations where a person with a cognitive impairment does not have the capacity to understand and make important decisions on their own, legal orders may be sought to enable another person to make financial and other decisions on their behalf.9The Guardianship Act 1987 (NSW) does not contain a definition of disability, but instead focuses on incapacity to make decisions. Section 3 states:

"person in need of a guardian" means a person who, because of a disability, is totally or partially incapable of managing his or her person.

In making a Financial Management order, the tribunal must be satisfied that:

the person is not capable of managing those affairs, and

there is a need for another person to manage those affairs on the person's behalf, and

it is in the person's best interests that the order be made.

In our studies, substitute decision making was largely discussed in the context of aging and dementia.10 However, the issues equally apply to people with significant cognitive impairment arising from other disabilities, and relate not only to financial decision making but to health issues as well. For instance, orders can also be made under the Guardianship Act 1987 (NSW) enabling a guardian to consent to certain forms of medical treatment for a person who is unable to give informed consent to the treatment themselves. One area where such orders have been particularly controversial is in the sterilisation of women and girls with a cognitive impairment. Sterilisation is performed for a number of reasons, including menstrual management and the prevention of pregnancy. However it has been criticised as being a violation of the rights of women with a disability to have children and as an implicit form of eugenics.11

Fines and Debt

Fines and fine-related debt have consistently been raised in the A2JLN research projects as legal issues commonly faced by disadvantaged people, including those with cognitive impairment. The relationship between cognitive impairment and fines is complex, as people are vulnerable to fines as a result of both their impairment and the attenuating socio-economic disadvantage. Further, once fined, people with cognitive impairment have particular difficulties in managing the complex and multi-agency fine enforcement process, resulting in further and entrenched debt. This process, and the challenges it presents to those subject to it, is described in detail in another Justice Issues paper, Fine but not fair: Fines and disadvantage (2008).

No home, no justice? and Taking justice into custody also highlighted the vulnerability of people with cognitive impairment (and those with limited literacy) to entering contracts and signing legally binding agreements which they did not fully understand.12 In these circumstances a lack of comprehension can lead to breaches of these agreements, liability for debts that were not expected, accrued debt and being subject to debt-recovery processes.

Social Security

Social security was also raised in the Foundation's A2JLN reports as a pertinent legal issue for people with cognitive impairment, with benefits being a primary source of income for many. Older people may be on the aged pension while people with a defined and long-term cognitive impairment may receive a disability pension. In our studies, some people also reported being on the Newstart Allowance, but with a 'sickness certificate'.13 The disability pension has the benefit of fewer compliance requirements than other social security benefits such as Newstart. However, in keeping with broader policy shifts under the Welfare to Work program, some people reported being moved from disability pensions to Newstart. An example from Taking justice into custody illustrated the difficulties this could present to people with cognitive impairment:

A fellow who was on a Disability Pension for years … he went to jail for six months and then came out on parole, and Centrelink basically said, 'Because you've been in custody, we've now got to go through the process of finding you eligible for Disability Pension again. In the meantime we'll put you on Newstart.' So it was a lower amount of money, he had to do a lot more to get it. The work diaries … he didn't have the cognitive skills to do it. 14

— Probation and Parole Unit Leader

As described in the quote above, as the system is currently structured, the placement of clients with cognitive impairment on Newstart (compared to the Disability Support Pension) not only results in lower benefits but also their being subject to greater compliance requirements and harsher consequences for non-compliance, including, if a client is breached, a potential loss of eight weeks income.15

Family law and child protection

Issues raised in the A2JLN research program about family law and child protection illustrate the complexity of legal issues when cognitive impairment is a factor. Some of the participants in our studies had significant difficulties maintaining the custody of and access to their children when they had other complex needs. One young homeless woman with cognitive impairment described her situation:

He's with DoCS because I had him when I was 16. I was underneath DoCS at the time … I ended up having a mental breakdown. There was only three choices I had — give my son to my mother, give my son to my uncle or hand him over to DoCS. I wasn't going to give him to my mum because she was an alcoholic and was abusive. My uncle was the father. So, the only other choice I had was to give him to DoCS. I signed the papers and that.16

A study of parents with a disability in NSW child protection matters reported that a disproportionate number of parents with a disability — particularly those with an intellectual and psychiatric disability — were appearing in child protection proceedings.17 It found that 7.1 per cent of all care proceedings in the NSW Children's Court involved a parent with an intellectual disability.18 In the majority of these cases the child was put into the custody of another adult or made a ward of the state.19 A participant in the A2JLN consultations noted that '...once children have been removed from parents with a disability, it is very difficult to get them back'.20

Criminal law

Victims of crime

There is evidence to suggest that people with a cognitive impairment are particularly vulnerable to crime victimisation.21 According to the Disability Council of NSW, '...it is widely reported that people with disabilities are over-represented as victims of crime, especially as victims of violence, fraud and sexual assault…'.22 This has been generally attributed to the person's vulnerability and dependence on other people and services.23

The legal needs of older people study reported that 'elder abuse has been appreciated as a serious social problem…'24 and that it often occurs in situations where the person abused is dependent on the abuser due to failing health or having a disability such as dementia. One respondent highlighted the vulnerability of some older people in institutional care:

It seems that old people lose certain human rights when they go into nursing homes, which leaves them vulnerable to abuse. For example, there are incidents in which old people are physically or sexually abused and notwithstanding that they have bruises or wounds, the police are persuaded by the residential care staff not to pursue the matters on the grounds that the victims' complaints are not reliable because, for example, they are suffering dementia.25

The vulnerability of people with cognitive impairment to crime victimisation was apparent irrespective of the source of their impairment.26

Offenders with cognitive impairment

The over-representation of people with a cognitive impairment as offenders in the criminal justice system has been discussed extensively in the literature27 and is reflected in available statistics. Most estimates of the prevalence of intellectual disability in the general population are between 1 and 3 per cent.28 The 2001 Inmate Health Survey conducted in NSW prisons found that 18 per cent of women and 27 per cent of men scored below the pass rate on an intellectual disability screener. Of those further assessed, 59 per cent of women and 39 per cent of men were determined either to have an intellectual disability or to be functioning in the borderline range.29 It has been suggested that people with an intellectual disability may be more likely than other people to appear in the criminal justice system as:

they may be more easily caught in the act or left 'holding the bag'

they may be susceptible to being exploited by others as an accomplice

their intentions may be misunderstood

they may express sexuality in a naïve and unacceptable way

intellectual disability may be associated with other organic disorders which result in impulsive and unpredictable behaviour.30

There is also emerging evidence of a link between brain injury and criminal offending.31

Once in the criminal justice and correctional systems, people with cognitive impairment appear vulnerable to extended and repeat incarceration. Borzycki has noted that people with an intellectual disability have higher rates of recidivism than people without an intellectual disability.32Taking justice into custody, together with research undertaken in the United States, suggests that people with an intellectual disability are less likely to be placed on probation as an alternative to incarceration.33

Taking justice into custody also noted that people with an intellectual disability appear more likely to be refused bail and held on remand than others.34 Reasons for this include people being held in custody because they do not understand and cannot show they will keep the bail conditions, or because they lack the support in the community to ensure they keep these conditions.35 Similar issues were raised in relation to parole, where, due to a lack of diversionary options or support in the community for offenders with cognitive impairment, they are not granted parole as readily as other inmates.36 In the Taking justice into custody consultations a worker commented:

And there's no support for them to come out to, so they don't get considered for parole … I couldn't tell you the last time a person with an intellectual disability came up for parole. It just doesn't happen. They always serve their full sentences.37

The study also identified that people with cognitive impairment were more likely to have problems understanding and adhering to the terms of their parole when it was granted, and were more vulnerable to breaching and being returned to jail to complete the sentence.38

In summary, the Foundation's A2JLN research illustrates both the vulnerability of people with cognitive impairment to coming into contact with the law as victims, plaintiffs or perpetrators, as well as the potential value of the law as a tool that could be used in their interests, for example to claim compensation or ensure appropriate decision making on their behalf. And yet, as discussed below, our research indicates that this same group of people face a range of significant barriers to accessing appropriate legal assistance and to participating effectively in legal processes.